What Does Constitutional Law Actually Say About Birthright Citizenship?

The country is abuzz with the 14th Amendment, as a practice called “birthright citizenship” has taken over the headlines.

According to birthright citizenship, a baby born in America is an American citizen.

Here’s what Section 1 of the 14th Amendment says, and has said for 150 years:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The plaintiff Wong’s parents had immigrated to the United States legally but could not become citizens due to the discriminatory immigration laws directed toward Chinses nationals, set forth by the Chinese Exclusion Act of 1882. Wong was born in San Francisco and assumed he was protected by the 14th Amendment. However, he was refused re-entry to the United States after visiting China as a result of the Scott Act of 1888, which prohibited re-entry to the United States after a visit to China.

The Supreme Court in 1898 would go on to rule, citing the 14th amendment, that anyone born in the United States to legal residents were in fact United States citizens — save for a few exceptions regarding foreign sovereigns and hostile occupation of American territory.

Constitutional amendments cannot be overridden by presidential action, such as an executive order. Amendments can be changed or undone only with overwhelming majorities in Congress (two-thirds vote of the House and Senate) and approval from three-fourths of the states. A constitutional convention, called for by two-thirds of states legislatures, could also recommend amendments. Approval from three-fourths of the states would still be required.

In other words, the administration would need the support of many, many lawmakers across the country to change the 14th Amendment.

But to even attempt to modify birthright citizenship is a dangerous road down which to traverse. If the practice is ended, it could add to an emerging two-tiered society, creating communities of people who are unable to fully contribute to the United States, and who owe loyalty to no nation at all.

Protect Birthright Citizenship, But Do Modernize Immigration Laws

America is in desperate need of immigration reform. The Deferred Action for Childhood Arrivals program — which deferred the deportation of undocumented immigrants who were brought to the United States as children, known as Dreamers — was cast into judicial limbo more than one year ago. Still Congress has not legislated a solution for those Dreamers. But ending birthright citizenship is not the right way to go.

“As we work to modernize our immigration laws, let us remember that America’s ideals of freedom, liberty and opportunity will continue to call many to her shores,” LIBRE Institute President Daniel Garza wrote in an open letter on birthright citizenship in 2015. “Immigrants willing to work in the United States contribute greatly to our economy, society and culture. May those who wish to work hard and contribute to the U.S. remain welcomed while we focus on curtailing the big government efforts that threaten to distinguish the very self-reliance and ingenuity that is essential to greater prosperity.”